Travis v. Spitale's Bar, Inc.

122 So. 3d 1118, 2012 La.App. 1 Cir. 1366, 2013 WL 4105400, 2013 La. App. LEXIS 1624
CourtLouisiana Court of Appeal
DecidedAugust 14, 2013
DocketNo. 2012 CA 1366
StatusPublished
Cited by15 cases

This text of 122 So. 3d 1118 (Travis v. Spitale's Bar, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travis v. Spitale's Bar, Inc., 122 So. 3d 1118, 2012 La.App. 1 Cir. 1366, 2013 WL 4105400, 2013 La. App. LEXIS 1624 (La. Ct. App. 2013).

Opinion

THERIOT, J.

| gThis suit arises out of injuries suffered by a restaurant patron who became ill after eating raw oysters. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Spitale’s Bar, Inc. (“Spitale’s”) operates a restaurant and bar in Amite, Louisiana which serves raw oysters. On May 15, 2004, Cary Devon Travis ate two raw oysters at Spitale’s. After consuming the oysters, Mr. Travis, who suffers from nonalcoholic steato hepatitis (NASH), became ill due to vibrio vulnificus bacteria1 contained in the oysters. Mr. Travis was hospitalized on several occasions after consuming the oysters and ultimately required a liver and kidney transplant.

The Louisiana Sanitary Code requires all establishments that sell or serve raw oysters to display warning signs at the point of sale to alert consumers of the risk associated with the consumption of raw oysters by those with chronic illness of the liver, stomach, or blood, or those with immune disorders. La. Admin. Code tit. 51, pt. IX, § 319(D). The Louisiana Department of Health and Hospitals (“DHH”) is responsible for inspecting these establishments for compliance with the Sanitary Code. La. R.S. 40:4.

On May 15, 2004, the date on which Mr. Travis ate the two raw oysters at Spitale’s, there were no statutorily-mandated signs in the restaurant area of Spitale’s, nor were there any warnings printed on the menus. The only warning sign in Spitale’s was in the bar area, which was separate from the restaurant area where Mr. Travis was seated.

Mr. Travis filed suit for damages against Spitale’s, its insurers, and DHH for failing to warn him of the dangers of consuming raw oysters and Rfor DHH failing to inspect Spitale’s for the warnings. Mr. Travis settled his claim against Spitale’s prior to trial.

[1124]*1124Prior to trial, the parties entered the following stipulation into the record:

1. The Louisiana Sanitary Code, Chapter 11, # 1109, requires the following warning:
“All establishments that sell or serve raw oysters must display signs, menu notices, table tents, or other clearly visible messages at the point of sale with the following wording:
THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.”
2. On the day of the incident, there were no signs as required by the aforementioned Sanitary Code provisions on the Spitale’s restaurant menu.
3. On the day of the incident, there were no signs as required by the aforementioned Sanitary Code on the Spitale’s restaurant walls.
4. On the day of the incident, the only sign as required by the aforementioned Sanitary Code provisions in Spitale’s was located in the bar area. Travis was eating in the restaurant area of Spitale’s which was in the same building as the bar but had a wall separating the bar from the restaurant with a door way leading from the bar into the restaurant.

The parties also stipulated to the amount of Mr. Travis’s medical bills; however, DHH did not stipulate that all of those medical expenses were incurred as a result of Mr. Travis’s oyster consumption.

After a jury trial, the jury returned a verdict in favor of Mr. Travis, finding that DHH breached its duty to enforce the Sanitary Code and that DHH’s breach was a cause in fact of Mr. Travis’s injuries. The jury also found that Mr. Travis contributed to his own injuries, and assigned fault as Lfollows: 40% to DHH, 33% to Spitale’s, and 27% to Mr. Travis. The jury awarded Mr. Travis $350,000.00 for his past medical expenses, $140,000.00 for his past lost wages, $60,000.00 for his past physical pain and suffering, $35,000.00 for his past mental anguish and emotional distress, and $100,000.00 for permanent injury. The jury declined to make any award for Mr. Travis’s future medical expenses, future lost wages, future physical pain and suffering, future mental anguish and emotional distress, and for his loss of enjoyment of life. The trial court rendered judgment against DHH in accordance with the jury’s verdict in the total amount of $274,000.00, plus legal interest. DHH filed a motion for new trial or for remitti-tur, which was denied by the court.

Both DHH and Mr. Travis have appealed the trial court judgment. DHH argues on appeal that the trial court erred in refusing to instruct the jury on the law of superseding negligence and in limiting its cross-examination of Mr. Travis. DHH also argues that the jury’s allocation of fault, as well as its awards for past medical expenses and past lost wages, were erroneous and contrary to the evidence. Mr. Travis assigns as error the jury’s allocation of fault, as well as the amount of the individual items of damages. Mr. Travis also argues that the jury abused its discretion by reducing the damage awards by his comparative fault, since the jury had already taken this reduction into account when it assigned to him a percentage of fault on the verdict, thus resulting in an inappropriate “double reduction.”

[1125]*1125DISCUSSION

Jury Instructions

DHH alleges that the court erred in failing to properly instruct the jury on the law of superseding negligence. DHH made a request in accordance Rwith La. C.C.P. art. 1793(A)2 for the following instruction to be given to the jury:

Superceding [sic] Cause: When an incident giving rise to injuries results from two acts of negligence, one more remote and one occurring later, the occurrence of the later act prevents the finding of liability for the person responsible for the more remote act. The subsequent action of the other persons or entities are intervening acts of negligence which the law regards as superceding [sic] the negligent act of the first person who acted.

A jury charge conference was held in accordance with La. C.C.P. art. 1793. Over DHH’s objection, the trial court declined to give the requested instruction, and charged the jury as follows:

Among the questions that we will be asking you to answer are some which concern the degree of fault which is to be assigned to the various parties in this case. Where there are multiple parties in a case alleged to be at fault as we have here, the law requires that you assign degrees of percentages of fault which add up to 100 percent responsibility for this incident. So my questions will be asking you to assign a percentage of fault, if any, to the plaintiff, Louisiana Department of Health and Hospitals or Spitale’s.... If you are satisfied that the plaintiff has established [causation and damages], then the plaintiff is entitled to recover and you should return a verdict for the plaintiff, unless the defendant has prove [sic] by a preponderance of the evidence that the plaintiff contributed to his own injury by his own substandard conduct. If the defendant has proved that the plaintiff was at fault himself and his fault contributed to his own injury, then you should assign a percentage of fault or responsibility to the plaintiff on the forms that I will provide to you.

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Cite This Page — Counsel Stack

Bluebook (online)
122 So. 3d 1118, 2012 La.App. 1 Cir. 1366, 2013 WL 4105400, 2013 La. App. LEXIS 1624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travis-v-spitales-bar-inc-lactapp-2013.